Should Judges Consider the Cost of Sentences?

Vermont lawmakers missed an opportunity to reduce state correction costs this month when they failed to pass a provision requiring judges to consider the cost of available sentences — a move that would help Vermont lower its correction costs and prison population.

Vermont lawmakers missed an opportunity to reduce state correction costs this month when they failed to pass a provision in a bill that would require judges to consider the cost of available sentences.

Although judges would not have been required to act on sentencing cost data, they would have been required to at least consider the cost of sentencing options — which may have helped Vermont lower its correction costs and prison population.

"The bill does not say to the judge that you have to issue this sentence because it's the cheapest option," said state Sen. Tim Ashe (D-Burlington), the bill’s sponsor. “But it does ask them to add cost to the list of factors they consider — like an offender's character and criminal history.”

The sentencing cost data would have been made available through a database maintained by the Vermont Department of Corrections and would have included the price tag of incarceration, probation, deferred sentences, supervised community sentence, and any other possible sentence.

Vermont’s correction spending rose 84% to $142 million from fiscal years 2001 through 2011, according to the Vermont Department of Corrections. That’s nearly $50,000 per inmate per year.

“Judges at least ought to be aware of the financial consequences of their decisions,” said Sen. Dick Sears, chairman of the Senate Judiciary Committee.

Missouri passed a similar proposal three years ago after several judges requested the information, but did not require judges to consider sentencing cost. Rather, the proposal only makes the data — such as the costs of incarceration and community supervision for a defendant’s specific sentence — available to judges. According to the Missouri Sentencing Advisory Commission, the average yearly cost for each inmate in Missouri prisons is $16,823, compared to a yearly probation cost of just $1,354.

Judges are also looking to reduce the cost of incarceration on the federal level. The average cost of a federal prisoner ranges from $25,000 to $30,000 a year—a price that nearly doubles for elderly prisoners (between $60,000 to $70,000). Judge Richard Posner of the Seventh U.S. Circuit Court of Appeals recently urged the judiciary to consider the effect of imposing lengthy sentences:

“A sentencing judge should [] consider the incremental deterrent and incapacitative effects of a very long sentence compared to a somewhat shorter one,” Judge Posner said. “An impressive body of economic research ... finds for example that forgoing imprisonment as punishment of criminals whose crimes inflict little harm may save more in costs of imprisonment than the cost in increased crime that it creates.”

While Vermont lawmakers failed to pass the sentencing cost provision, they did pass provisions of the bill that require the creation of two working groups. One is a cost-benefit working group that will provide policymakers, rather than judges, with analyses to identify cost-saving for the state. The other is the Criminal Offense Classification Working Group, which will study the state’s criminal offense system in order to standardize uniform application of laws throughout the state.

Although Vermont lawmakers failed to require judicial recognition of the cost of each individual sentence this year, the bill still represents a step forward in efforts to reduce the overwhelming economic and social costs of overincarceration — a step legislators in other cash-strapped states would do well to follow.